We're not really mad geniuses. We're just a little miffed

Writers, morality and the #MeToo fallout

by Amanda on January 8, 2019

I’ve been pondering whether to write this post for the better part of a week. I’d been hearing rumbling from traditionally published authors about a contract clause that is as evil–their words and I agree–as the rights grabbing clauses that have become common in publishing contracts. But then, several days ago, an op-ed piece appeared in the NYT and I knew what I needed to write. The clause? A morality clause. Yes, you read that right. More and more traditional publishers are now including a morality clause in their contracts.

Judith Shulevitz penned “Must Writers Be Moral? Their Contracts May Require It” last week for the Times. The basic premise is that a growing number of publishers, book publishers are well as newspaper and magazine publishers, are including morality clauses in their contracts. On the face of it, such clauses don’t appear so onerous. Except….

There’s always an exception, isn’t there?

The clause itself should send shivers down our spines.

These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”

Even though Shulevitz “guesses” that’s reasonable, I beg to differ. This clause can be used if a tweet or an image from years ago–decades ago–comes to light that the publisher believes is “inconsistent” with the author’s reputation. Then there’s the question of who determines what the reputation happens to be. Then there’s the whole question of what”sustained, widespread public condemnation. . . that materially diminishes the sales potential of the work” means.

With the way publishers are trying to hold onto a work for the life of the copyright, this should scare all of us. It basically means as long as they continue to hold your rights, you have to worry. “Past or future conduct” is limited. You could suddenly find yourself in a Kevin Hart situation like the comic had with the Academy Awards this year. Hell, you could find yourself in an Ellen situation where she defended Hart this past week and championed him being host for the awards show, only to find herself under attack from the perpetually butt-hurt for accepting his apology for jokes Hart made years ago.

That is the sort of condemnation a publisher could use to not only cancel your contract but demand your advance back.

Yes, you read that right.

But those of you who write for magazines are facing even worse morality clauses. Although, to be honest, I expect the Big Five and other publishers to follow. After all, they do seem to move in packs when it comes to how they treat their writers.

This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.

Read that again.

You don’t have to do anything wrong. All you have to do is become the target of the mob because you suffer from wrong think. Now think about the attacks people associated with Sad Puppies have undergone. If such a contract clause had been in effect in their contracts, and if the publishers had been brave enough to go up against the ILOH, Larry, Brad, Sarah and others would have found themselves out on their ears. Of course, the mob of angry fans would have been something to watch as they marched on the bastions of traditional publishing.

The thing is, we shouldn’t be surprised by this clause being found in our contracts. in 2011, Harper Collins included such a clause in a contract sent to Ursula LeGuin. Ms. LeGuin took exception to the clause and took to her blog. (You’ll need to scroll down a bit to find her letter to Rupert Murdoch.)

“It was nothing really materially damaging, only just the money and I.D. I stole from the old man with the walker and some things I said about some schoolgirls with big tits.” Please, the letter went on, don’t “make me pay back the money because I can’t because I already had to give most of it to some stupid lawyer who said I had defaulted on a loan and was behind on my child support, which is just a lie. That stupid brat was never mine.”

As the NYT piece notes, terms like “public condemnation” are so vague we, as authors, should run from the contract without hesitation. Such clauses are an out for publishers. It gives them reason to cancel a contract without real cause. Your sales can be meeting the contractual level to keep your book in print but, for whatever reason, they want to be done with you. Then you write a blog post that gets some negative Twitter attention. Or you say something on Twitter that has a handful of people reacting negatively. That is enough, under such vague language, for the publisher to cancel the contract.

Jeannie Suk Gersen, a Harvard Law professor and regular contributor to The New Yorker, wouldn’t sign a contract containing such a morality clause. “No person who is engaged in creative expressive activity should be signing one of these,” she told Shulevitz.

But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”

Anyone remember the anti-Sad Puppy crowd calling for Baen to fire the ILOH or Brad or Sarah? Now think about what could have happened had they been subject to such a contract clause.

And, if Conde Nast is doing it now, how long before book publishers start including such language–assuming a court doesn’t strike it down before then.

I hear some of you telling me I’m overreacting. After all, contracts can be negotiated. That means you can negotiate this clause. Right? Wrong. At least not unless you have enough clout, a big enough name, to make the publisher’s blink.

Masha Gessen, like Gersen, received a contract with one of those damned clauses in it. She also refused to sign. Here agent, as well as Gersen’s, managed to negotiate the language of the contract into something a bit more palatable. In Gessen’s case, the contract clause was amended to state that the morality clause can’t be invoked as the result of her professional work, important since she often writes about controversial subjects. Conde Nast had to acknowledge that she had “expressed controversial views” and that “professional work” included “public events or posts on social media in addition to her writing.”

But Gessen admitted her case, like Gersen’s, was the exception and not the rule. She knows she was able to stand up to Conde Nast because she “has clout” and she worries about lesser known writers who don’t.

The problem with letting publishers back out of contracts with noncelebrity, nonreligious, non-children’s book authors on the grounds of immorality is that immorality is a slippery concept. Publishers have little incentive to clarify what they mean by it, and the public is fickle in what it takes umbrage at.

Gawd almighty, ain’t that the truth, especially that last part?

I don’t know about you, but I want more than a nebulous, “you must be good, and we’ll decide what that means–but we don’t have to tell you–or we will cancel your contract and demand our money back.”

Here is a key:

Times change; norms change with them. Morality clauses hand the power to censor to publishers, not the government, so they don’t violate the constitutional right to free speech. But that power is still dangerous.

It gives the power of censorship to the publishers. Think about it. When they say they want to be the gatekeepers, it isn’t the gatekeepers of quality. It is the gatekeepers of point of view on issues, on what is the right way to think about things, etc. They want to “educate” us to be “better”.

Riiiight.

While I disagree with the author’s comment that this clause will have a more chilling effect on women and minority authors than it does on white males–I especially disagree in the climate of the #MeToo movement–she is right that these clauses are chilling.

This is yet another reason why you MUST read any contract a publisher or agent sends you for your work. Not only that, you MUST have an IP attorney look it over. Otherwise, I suggest you put your advance in an escrow or other interest bearing account and not touch it for the life of your contract. If you don’t and if at some point in the future, you’d better be prepared to return that advance, probably with interest, to the publisher if you were foolish enough to do or say anything that someone might have taken offense to.

Like this:

Related

Reminds me of the Article 134 of the UCMJ (Uniform Code of Military Justice. US) It’s called the GENERAL Article, because it covers “…all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces…” So basically it’s a catch-all, requires a Court Martial, and is punishable using any means the court martial decides.

In the QR&O’s (Queens Regulations and Orders) it was “Section 129”. If I remember correctly it was “Conduct unbecoming a member in uniform”. No court martial, just disciplinary parade. All charges had that one appended because there was no way 99% of the time to fight it. So if you beat the other charges that one would stick. Nasty way to punish soldiers if a senior NCM (non-commissioned member) had it in for you.

UCMJ has Article 15, Non-judicial punishment (NJP). I believe the navy still calls it “Captain’s Mast”, and the Marines “office hours?”. Senior NCOs can not impose it; but they can recommend it to the commanding officer. It can only be given for “unlawful conduct”, so the military member has to do something that’s against the law. The member has the right to refuse imposition of NJP and request a court martial, except in the case where he or she is the accused is attached to or embarked in a vessel.

At some point the excuse that it’s not government doing the censorship has to fail. Because our civil rights already apply to areas that are not controlled by government, they already apply to employment and housing.

I think I’d modify their morality clause to state that any publisher choosing to invoke the clause must return ALL rights to ALL works held of the author to the author, and all GROSS revenues from the sales of all their works up to the time of termination.

And no, the publishers can’t subtract the cost of taxes paid by them on the income received for the sale of that author’s work. They’ll have to deduct it as a loss or business expense on their tax return.

And yes, you’re only going to get them to agree to that from a position of strength. Indy publishing of any kind is looking more and more like it’s going to be the only source for unbiased truth; and people will still need to sort through the hay to find the needles. Unless someone has a good magnet?

Why would Amazon do that? They are making money off of KU for basically doing nothing but acting as a server host for our books. They make even more money if we go exclusively with them because it means they are getting all our sales.

Does that mean they won’t, at some point, start limiting the number of authors in KU? No, but Amazon is out to make money and that’s what we are doing for them.

I have no doubt that by the time the scenario you suggest happens–if it ever does–another platform will be available for us.

“I have no doubt that by the time the scenario you suggest happens–if it ever does–another platform will be available for us.”

Funny, that’s what gab thought….. until their hosting company refused to host them… and the on-line payment processors refused to process payments for them…… They’re still fighting that one out.

I had the personal experience of trying to donate to two Republican Congressional candidates during the election, and my PayPal MasterCard refusing to allow it. See also gun sellers and firearms makers.

Let’s see, I seem to remember something about a gatekeeper who kept people who didn’t believe a certain way from buying and selling…..

16 And the second beast required all people small and great, rich and poor, free and slave, to receive a mark on their right hand or on their forehead, 17 so that no one could buy or sell unless he had the mark—the name of the beast or the number of its name.…

OMFG, there is a big difference between what I said and what you are commenting on. Gab was problematical from the beginning and subject to the ToS of its host. If the folks behind it had been serious about what they were doing, they would have self-hosted.

As for why your donations were refused, did you follow up? There very well may have been more than the “big conspiracy” behind it.

What would you have us do? Give up? Just wait for Amazon to turn evil and shut the door on us and then go “woe is me, the conspiracy lives?” Because that’s what it seems. Instead, there are those I know who are working to have something in place ahead of time, something to give Amazon some competition. These folks are business savvy, both when it comes to e-commerce and when it comes to publishing. I’ll take their approach over the “but it didn’t work for so-and-so, so it won’t work for anyone else.”

Why would traditional publishers abruptly part ways with authors with decades-long careers and proven, predictable sales?

We’ve been watching the publishing industry commit corporate seppuku for a couple of decades now. Amazon is now the largest retailer in the world, and books of all types are less than 7% of its sales (*); it’s not like having some middle managers go SJW would make an noticeable difference to their bottom line.

As for why it looks like Amazon publishing, duh. Amazon is easier to work with than the other platforms. Most sales come from there. I can’t speak for any other indie author but it isn’t worth my time to put my books on the other platforms because the sales don’t justify it. In this day and age where I can read my Amazon ebooks on my iPad or my android phone or my PC tablet, why should I spend the time and effort to put my books up on other markets that make me less than 10% of what I make through Amazon? Especially when I make that much up and more by going exclusively Amazon?

Amazon gets a lot of press because it’s the majority of the market in the US. Not worldwide. Amazon has already kicked several authors off, and unpublished their books, for terms of service violation. Some of them went wide and stayed off Amazon entirely, and some went wide and came back to Amazon, but stayed off KU.

There are also lots of authors who have left KU and gone wide, and are doing well for themselves. It’s a harder road to travel because it requires coordination of pricing across multiple retailers, and keeping an eye on multiple vendors, and your income drops hard until if/when you get the hang of the different market you’re selling to. But it’s not impossible, nor even that uncommon.

Something else to consider–and I don’t trust them any further than I can throw them, but that is still further than I trust the others–they have a very easy to read and understand ToS. With very few exceptions, those authors who have been tossed from the KU program have been in violation of that ToS. Some had even been boasting on social media how they purposefully violated the terms because Amazon wouldn’t catch them.

The problem is, when Amazon does a purge, it doesn’t explain why it took the actions it did. Instead, we hear from the outraged crowd, many of whom simply repeat at a higher volume of outrage, what someone before them said. They don’t verify and it progresses from there.

Am I saying Amazon is without fault? Far from it. But, to date, they have been more in our corner than anyone else and I am willing to give them the benefit of the doubt, up to a point, because of that.

Recently, some discussion brought up the question of what the end of all this would be. As in, what, if any, is the path to normalcy. I can think of two or three possibilities.

If we are looking at the end of the communist regime in Romania, we are looking at a preference cascade when the repression loosens up. This item here is the repression tightening, but in a way that may not actually be sustainable. It may be correct that this is worse for women and minorities; for NY publishing, the default reputation of women and minorities may be as an echo chamber for the left. So they may be judged to a narrower set of criteria and a hair trigger.

Stackpole resigned from GAMA a few days back. He took a lot of pains to establish that he is not Right, and not acting in sympathy with the puppies.

Anyway, I don’t have forecasts on what this means for everyone. It does not change my estimates of what I need to do to protect myself, and to not contribute personally to this madness.

It does show his resignation letter right above an anti-puppies piece, but that piece is from 2015. I couldn’t find anything else that suggested Mr. Stackpole was trying to disassociate his resignation from anything related to the puppy thing.

This makes me sour on ever trying traditional publishing. The outrage machine is constantly on the move. I’m not even sure there’s all that many people driving it, but they are loud and enough of them are rich to make life more difficult. What little would it need to have all your hard work go up in flames? Someone offended by a meme or joke you reposted with half a thought over breakfast years ago? Knights of Columbus membership?

I don’t get what interest these people have in implementing this. It’s almost religious. I can’t make sense of it in material terms. It wasn’t Kevin Hart that would make the Oscar ratings low. I hesitate to view it as a religious movement because the idea seems all so silly, but you try pointing out the illogic of this thinking and you’ll get more of a vitolic response from them than you would from insulting the Blessed Virgin in front of a devout Catholic.

It is a religious movement. Catholicism is not the only religion in the world, and there are a wide range of patterns religious practice can take.

I use two questions to establish that it is religious.

1. Is this a mystical activity? Is it based on mysticism? The Arc of History stuff, for one, is fairly obviously mysticism. Marx was cherrypicking his historical data, and even if he had not been, extrapolating beyond the data set is not valid. ‘Inevitable historical forces’ are functionally identical to ‘spirits’. That whole area of the belief system is basically ‘the spirits will make it happen’ especially if you make them happy.
2. Is this a religious mystical activity or a spell casting magical mystical activity? The public group involvement makes it pretty clearly a religious activity by the criteria I use.

Indeed, Catholicism is not the only religion in the world, but it is the one I know best, hence the comparison. Maybe Islam, with its more mystic worldview, would be better for that.

What makes me resist believing that this whole nonsense is religiously motivated is that I can’t figure out what people feel they’re getting out of it day to day. The devotees run themselves ragged trying to live by the shifting woke rules and past sins never seem truly forgiven no matter how penitent you are. It’s materialistic, so the afterlife seems to be out as a motivation, and by its own internal logic there is no true permanent moral standard. I guess believing one is building a perfect world is enough.

Yeah, basically. (One could also ask what the Orthodox and Conservative Jews get psychologically from those ritual purity rules. 🙂 )

It’s something like a ‘secular’ version of the New Jerusalem. The big promise is heaven on earth by science flavored means.

I think Moldbug is wrong to say that it is entirely derived from Protestantism, but there is a definite influence from the American Protestant tradition. The early Calvinist (a.k.a. Puritan) settlers of parts of New England were essentially hand picked fanatics. The wheels came off when the later generations had more varied personalities, but the first generation saw how well things were working and came up with the notion that they were practicing Christianity in a good way, and that this practice was bringing the New Jerusalem earlier and on more favorable terms. This was part of the Calvinist influence on the later revivalist movement, which to this day influences a number of Protestant denominations. For the revivalist, it is important that people care about Jesus, and visibly show that they care.

Whatever the nature and origins of this left or socialist or communist religious practice, it is similar in that the visible show of caring is important. In this socialist religion, words and visible signs of caring are symbols that are used in mystic rituals to alter reality. This has implications. One is that there are no really unavoidable bad outcomes, no tradeoffs between evils. Another is that someone outside the faith, like me, who does not show the right outward signs of caring, does not care, wants problems to exist, and helps make them exist. /I/ should feel bad for not being of the faith. Someone of the faith has made a moral choice by picking the faith, and they should feel good about that, regardless of what other choices they make in their lives. Add in that if you are already within the faith, most of your social contacts are also within the faith, and you’ve bought into the faith’s ideas about what it is to be apostate. However much it may cost to remain inside the faith, the cost of losing the social contacts and of becoming apostate seems much higher. If one has attended public school recently, one has been raised within the faith.

I graduated public high school in 2008, but I think I missed the time period when it began to take hold. That or I read too much in class.

You raise an interesting point on what’s driving all this and where it comes from, but it’s also a depressing one. That sort of fervor is not something you can reason with and it will not just leave you alone.

Oh God. I saw that piece about the Know Nothing senators going after that judge appointment because he was a KoC. The guy has done more good through the KoC than those senators will in their entire combined lifetimes.

“This is yet another reason why you MUST read any contract a publisher or agent sends you for your work. Not only that, you MUST have an IP attorney look it over.”

I have seen a lot of contracts the last couple of years. I’ve learned a couple of things.

1) I am not a lawyer. I cannot read and understand what those things say, it is written in a secret code. Not kidding.

2) If I don’t have a lawyer read and explain exactly what’s going on, I am going to get SCREWED.

3) If I’m the producer and somebody else is the buyer, any penalties in the contract had better be against them and not me. I do not work for somebody and then pay them as well. They pay me. But if I’m not careful and my lawyer isn’t smart enough, that’s going to happen.

4a) Many contracts have clauses, even whole sections, of unenforceable bullshit in them. Huge penalties for non-delivery, ridiculous non-disclosure requirements, parameters which change by the phases of the moon, you name it. All bullshit.

4b) Sometimes those bullshit sections can be used to beat you up. Even though they’re unenforceable and there is established precedent that makes them guaranteed to fail in court. Because you do not want to go to court. It is expensive, agonizing and futile. If you have to go to court, you lost.

Therefore, be extremely wary of contracts with large organizations. They are populated by assholes who will try to extort you for money or just for fun.

Contracts are supposed to be a negotiation. If a company refuses to modify something for you, such as take out large sections of nonenforceable boilerplate or objectionable penalties, then you really should not be doing business with them. They’re not dealing straight already, and you haven’t even started yet.

From my non-lawyer, word-producer standpoint, the author/publisher relationship is simple. I write stuff, they print and sell it, I get a percentage. I don’t work for free, neither do they. But a morality clause as described here, that’s a clear attempt to make me work for free.

Consider that all it would take to trigger this your own book. You could end up in a ShirtStorm because your book had a trans character. Or, because it did -not- have a trans character.

The ShirtStorm might even be started against you by your own publisher’s website or social media. We all remember TOR.com and Alex Dally MacFarlane, right? An end to binary gender, and all that? Or John C. Wright vs. The Toad?

To me, it would be better than my hard work never see print at all, than I should be ensnared in a web like that. What a living nightmare.

So… publishers are demanding morality clauses from writers whose books they, if they publish, hope to see made into miniseries and MAJOR MOTION PICTURES from people awash in rape and pedophilia out in Hollywood… okay, then…

And frankly if they’re worried about REAL problems the answer is to have a ‘this contract must be renewed in 3 years. If the contract is not renewed, rights return to author and all obligation from the publisher are terminated once final monies from term of the original contract have been rendered.”

I want for Christmas a homicidal maniac as a lawyer. I want the sort of lawyer that when they come walking in with me to a contract negotiation, the other side has to change their underwear. ALL of them.

I want the sort of lawyer that when they point out stupidity like this, it vanishes immediately because they don’t want to be reduced to a thin red smear on the wall. Literally.